Citation Nr: 21077031 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 18-04 689A DATE: December 28, 2021 ORDER Entitlement to an effective date prior to November 14, 2014, for entitlement to service connection for the Veteran's right knee arthritis is denied. Entitlement to an effective date prior to November 14, 2014, for entitlement to service connection for the Veteran's left knee arthritis is denied. Entitlement to an effective date prior to November 14, 2014, for entitlement to service connection for the Veteran's degenerative arthritis of the cervical spine is denied. Entitlement to an effective date prior to November 14, 2014, for entitlement to service connection for the Veteran's right shoulder arthritis is denied. Entitlement to an effective date prior to November 14, 2014, for entitlement to service connection for the Veteran's left shoulder arthritis is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that entitlement service connection for the Veteran's right knee arthritis is warranted from November 14, 2014, the date of the Veteran's claim, and no earlier. 2. The preponderance of the evidence shows that entitlement service connection for the Veteran's left knee arthritis is warranted from November 14, 2014, the date of the Veteran's claim, and no earlier. 3. The preponderance of the evidence shows that entitlement service connection for the Veteran's cervical spine arthritis is warranted from November 14, 2014, the date of the Veteran's claim, and no earlier. 4. The preponderance of the evidence shows that entitlement service connection for the Veteran's right shoulder arthritis is warranted from November 14, 2014, the date of the Veteran's claim, and no earlier. 5. The preponderance of the evidence shows that entitlement service connection for the Veteran's left shoulder arthritis is warranted from November 14, 2014, the date of the Veteran's claim, and no earlier. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an effective date prior to November 14, 2014, for entitlement to service connection for the Veteran's right knee arthritis have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. 2. The criteria for establishing entitlement to an effective date prior to November 14, 2014, for entitlement to service connection for the Veteran's left knee arthritis have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. 3. The criteria for establishing entitlement to an effective date prior to November 14, 2014, for entitlement to service connection for the Veteran's degenerative arthritis of the cervical spine have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for establishing entitlement to an effective date prior to November 14, 2014, for entitlement to service connection for the Veteran's right shoulder arthritis have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. 5. The criteria for establishing entitlement to an effective date prior to November 14, 2014, for entitlement to service connection for the Veteran's left shoulder arthritis have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1989 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a February 2021 virtual hearing. A transcript of the hearing is of record. The Board notes that the April 2015 grants of service-connection for the Veteran's bilateral knee, bilateral shoulder, and cervical spine disabilities were based on the Veteran's claim for an increased disability rating for his then service-connected fibromyalgia disability. The Veteran then appealed the effective date of his claims. As the Veteran's service connection to these disabilities was based off an increased rating claim, the Board finds it necessary to apply the earlier effective date criteria for both increased rating and service connection disability claims, in order to properly adjudicate the Veteran's claim. Earlier Effective DateLegal Criteria Regarding service connection claims, the assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection or a claim reopened after final adjudication, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim or a claim reopened after final disallowance, "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. Prior to March 24, 2015, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim was considered to be any communication or action indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim needed to be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it had to identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Effective March 24, 2015, a change in regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160(a). Regarding increased rating claims: generally, the effective date of an award of an increased rating is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The pertinent criteria for the effective date of an award for an increase in disability compensation are found in 38 U.S.C. § 5110(b)(2) and 38 C.F.R. §§ 3.400(o)(1), 3.400(o)(2). However, 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating. Otherwise, the general default rule for earlier effective dates applies. See 38 C.F.R. § 3.400(o)(1); Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, three possible dates may be assigned depending on the facts of the case, in the context of claims for an earlier effective date for an increased rating: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) 38 C.F.R. § 3.400(o)(1); or (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) 38 C.F.R. § 3.400(o)(2); or (3) if an increase in disability precedes the claim by higher than a year, the date that the claim is received (date of claim) 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). Determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Bilateral Knees, Bilateral Shoulders, Cervical Spine At the outset, the Board notes that the essential facts of the Veteran's claims for entitlement to earlier effective dates for his above claimed issues are essentially identical. In addition, the resolution of these claims involves the application of identical law to similar facts. As such, in the interest of judicial economy these issues will be addressed together. The Veteran was discharged from service in October 1993. The Board notes that the Veteran had an informal claim for increase for his service-connected disabilities which was received December 11, 2009. The Veteran's claim was denied in a June 2010 rating decision, and the Veteran filed a timely notice of disagreement. The Veteran's claims were again denied in a July 2013 statement of the case wherein the Veteran was informed he would have to submit a VA Form 9 within 60 days of the date of the statement of the case in order to appeal the denial. The Veteran did not timely appeal this denial, as such, the claim was properly closed. Therefore, this earlier claim cannot be the basis for an earlier effective date. The Veteran then submitted a claim for an increased disability rating for his service-connected joint pain which was received November 14, 2014. It is from this claim that in an April 2015 rating decision, the RO discontinued the Veteran's previous service-connected fibromyalgia and granted service-connection for the Veteran's bilateral shoulder, bilateral knees, and cervical spine conditions all effective November 14, 2014, the date of the Veteran's claim for increase. As noted above, under the rules for effective dates for service-connection since the claim was filed more than a year from when the Veteran left service the effective date will be the date of claim or the date entitlement arose, whichever is later. The effective date assigned to the Veteran for his service-connected disabilities was the date of his claim. There is no statutory or regulatory authority which would allow for an earlier effective date based on the above facts. Under the rules for an earlier effective date based on increased rating claims, the Veteran can only receive an earlier effective date if it is factually ascertainable that an increase in his disability occurred within a year preceding his claim. So, an earlier effective date is warranted if it is factually ascertainable that the Veteran had bilateral shoulder, bilateral knee, and/or cervical arthritis within a year of his November 2014 claim. The Board has carefully reviewed the Veteran's entire claims file. The evidence of record does not document that the Veteran's bilateral shoulder, bilateral knee, or cervical spine disabilities factually ascertainably increased in severity within a year of the claim. The Veteran's VA treatment records show complaints of and treatment for pain and swelling in the Veteran's joints, but do not document specific worsening within a year of the Veteran's claim. In a March 2014 VA Fibromyalgia examination the examiner noted that the Veteran did not have a current fibromyalgia diagnosis and indicated the Veteran's current joint severity would be addressed in individual examinations. In March 2015 VA Neck, Shoulder, and Knee examinations the examiner diagnoses the Veteran with bilateral knee, bilateral shoulder, and cervical spine arthritis. And it is these diagnoses that the April 2015 rating decision based its grants of service-connection on. Thus, as noted above, there is no basis to grant an effective date earlier than the date of the claim. 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). The Veteran submitted his claim for an increased rating on November 14, 2014, and an increase in disability is not factually ascertainable within a year of that date. The Board finds the preponderance shows an earlier effective date for the service-connection of the Veteran's bilateral shoulder, bilateral knee, and cervical spine disabilities is not warranted. In sum, the Board finds that there is no legal basis to assign an effective date prior to November 14, 2014, for the award of service connection for the Veteran's disabilities under either the rules for earlier effective dates for service-connection or the rules for earlier effective dates for an increased rating claim. The Board is sympathetic to the Veteran's claim, but it is bound by the laws and regulations that apply to veterans claims and it has no discretion in this regard. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). As such, the claim is denied. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.